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Friday, December 21, 2012

Public employees have free speech rights that protect them from workplace retaliation. However, their rights are very limited as demonstrated by this Case of the Week: Dixon v. University of Toledo (6th Cir.).

The employee was the Associate Vice President of Human Resources at the University of Toledo. She had significant authority and discretion in the area of policy-making and benefits administration.

One day, the editor-in-chief of a Toledo newspaper authored an op-ed comparing the struggle for homosexuals to obtain equal benefits for their same-sex partners at the university to the civil rights struggles of African-Americans and individuals with disabilities. The HR VP authored a response that was published in the paper, including:

As a Black woman who happens to be an alumnus of the University of Toledo’s Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the homosexual lifestyle are “civil rights victims.” Here’s why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few. . . .

Well, this is a Case of the Week, so you probably know what happened next . . . she was terminated.

On its face, this seems like a decent First Amendment claim. Was she speaking as a private citizen? She didn't identify her position, and writing the op-ed was not part of her official duties. Was it a matter of public concern? Obviously - I mean the paper published her op-ed, and it was in response to previous newspaper coverage of the issue.

So, what's wrong? Well, courts balance the individual's free speech interests against the government's interest as an employer. The Sixth Circuit applies a presumption that the government interest outweighs the individual's interest where the employee "was a policymaker who engaged in speech on a policy issue related to her position." In this case, the employee was a "policymaker" and her speech related to the HR issues she oversaw. Summary judgment for the employer.

[T]he black lady that does the news is a very nice lady. the only thing is she needs to wear a wig or grow some more hair . . . . i'm not sure if she is a cancer patient . . . but still its not something myself that i think looks good on tv. what about letting someone a male have waist long hair do the news.what about that.

The meteorologist fired back a response:

I am very proud of my African-American ancestry which includes my hair...Showing little girls that being comfortable in the skin and HAIR God gave me is my contribution to society. Little girls (and boys for that matter) need to see that what you look like isn't a reason to not achieve their goals.

Now, here's where the story begins to become a matter of perspective. The station managers claim they told the meteorologist to refer controversial comments to them and not to personally respond.

A few weeks later, someone posted a question on the station's Facebook page about why the kids in some segment were all "people of color." The meteorologist responded, and she was terminated. Now, back to framing the issue . . . you tell me, was she "fired for defending her hair on Facebook" or "fired for violating the employer's directive regarding social media?"

Friday, December 14, 2012

About this time of year, I like to revisit Ganulin v. U.S., 71 F. Supp. 2d 824 (S.D. Ohio 1999)(opinion here). The Court held that the federal holiday for Christmas did not violate the Establishment Clause of the First Amendment of the United States Constitution. I have covered this case in past years: Is a Christmas Federal Holiday Constitutional? and Christmas and the Constitution. Those posts have generated some insightful comments and lively debate, so check 'em out.

I continue to believe that Ganulin got it right. Some critics of my past posts decry the holiday as "majoritarian." Well, yeah - we incorporate democracy into our government in a number of ways. That alone, is insufficient to make the holiday unconstitutional. The issue is whether the holiday violates the establishment clause.

The Court actually relies on the majoritarian aspect of the holiday as part of its rationale. The Court is not establishing a religious holiday, it is merely recognizing the "public calendar" and the fact that (figuratively) nobody works on Christmas.

When government decides to recognize Christmas day as a public holiday, it does no more than accommodate the calendar of public activities to the plain fact that many Americans will expect on that day to spend time visiting with their families, attending religious services, and perhaps enjoying some respite from pre-holiday activities.

I think of it as akin to having Sundays off. Sure, Sunday is often considered the Sabbath and many people attend religious services - but at this point, it's just part of the public calendar. Offices are open Monday to Friday and we get Saturday and Sunday off.

For me, the game-winner is that the holiday requires absolutely nothing of employees but that they take a day off. They get the day off. That's it. They can do whatever they want. Yes, they can go to mass . . . or not. The government does not indicate that Christianity is "right" or that Jesus Christ is the son of God or take any religious position.

I'm sure there's no shortage of people ready to tell me I'm wrong though . . . so drop a comment! Let's make this the best "Is Christmas Constitutional?" debate ever!

Right to Work Map - Shows a map of the U.S. indicating which states are right to work states. Click on a state to view its right to work legislation. [Note: Link goes to Right to Work advocacy org.]

Drinking Chrysler Employees Reinstated - Remember those auto-workers the medica caught drinking and "apparently" smoking dope on their breaks? Through the magic of labor arbitration, they were reinstated.

Saints Bounty Players' Suspensions Revoked - Former NFL commissioner Paul Tagliabue heard appeals from the Saint players accused of participating in a bounty ring. They allegedly had a pool of money and the pot went to whoever took out the opposing quarterback. Well, their suspensions were just revoked.

Monday, December 10, 2012

Due to illness, we have a special, belated, Monday Case of the Week. On the plus side, the delay allowed me to pick up the Supreme Court's order from friday granting certiorari in two same sex marriage cases!

No doubt, these two cases will receive a ton of media hype. For now, let's just start with the questions presented.

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

AKA "the Prop 8 case." The Supreme Court also added its own question: "Whether petitioners have standing under Article III, §2 of the Constitution in this case." For additional coverage and all available documents, view the SCOTUSblog case page here.

Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

AKA "the DOMA case." The Supreme Court also added its own question to this case:

Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

The added questions in the two cases leave the Supreme Court an escape hatch to avoid answering the tough questions. I hope that doesn't happen, but you never know. For example, could we end up with three justices holding the parties lack standing in the Prop 8 case, three holding that it's unconstitutional because of a right to same-sex marriage, and three holding that it's constitutional and there is no right to same-sex marriage? It's possible.

Thursday, December 6, 2012

One of the side effects of attending law school is a constant urge to search for legal issues everywhere. So, when a friend sent me this Metzger Cartoon (go ahead, click it and a one panel comic will pop up), I immediately questioned whether Santa was running a lawful workplace.

Do you see the problem? The reindeer pull a sleigh carrying Santa Claus. So, wouldn't Santa's weight impact the terms and conditions of their employment? Aren't Rudolph, Blitzen, Cupid, and Dancer all co-workers? It's no secret that the NLRB has been cracking down on employers who infringe upon employees' protected concerted activity via social media. When employees discuss problems with the terms and conditions of their employment (which they seem to be doing here) they are likely engaging in protected activity under the NLRA.

For bonus points, do you see any defenses? What if Santa's morbid obesity (700 pounds!?) constituted a disability? Could disciplining the reindeer be a lawful step toward preventing hostile work environment disability discrimination?

So, what's the case about? A plaintiff files an FLSA (wage and hour) complaint and intends to get other employees to opt in to make it an FLSA collective action. The employer immediately says, "we surrender, take everything you're asking for." Now, the only plaintiff in the case has no real case - there is no "case or controversy" because the employer is offering everything the plaintiff can possibly get. Nobody else has had a chance to join the collective action, so the case has no real plaintiffs . . . so, is the case over? Can the employer really get a collective action dismissed just by "picking off" the lead plaintiff?

At oral arguments, the more liberal Justices leaned pretty heavily in favor of allowing the case to proceed to identify more plaintiffs.

Justice Ginsburg
At one point, the employer's attorney argued that potential plaintiffs are not part of the case until they officially opt-in, to which Justice Ginsburg replied, "Yes, but you have to give the plaintiff an opportunity." - that's pretty much the whole issue, so I'm going to go ahead and put Ginsburg, J. in the employee-side on this one.

Justice Breyer
Justice Breyer said it would be "fair" to allow subsequent plaintiffs to "relate back" to the earlier Complaint - and don't Justices strive to be "fair"? So, I'm going to place Justice Breyer in the employee-side as well.

Justice Sotomayor
Justice Sotomayor related back to her district judge days, and seemed upset that the parties were even presenting their settlement negotiations to the district court. She also pointed out that nothing in Rule 68 (regarding offers of judgment) allows a district court to enter judgment when the offer is rejected. These are technically side issues, but I'm still placing her in the employee-side.

Justice Kagan
At one point, Justice Kagan said:

[T]he plaintiff's individual claims have not been fully satisfied. She walked away with nothing. She walked away with no judgment, and she walked away with no $7,500. And the question is: How can it possibly be that her individual claim was moot?

Sounds like she's in the employee-side camp as well.

Chief Justice Roberts and the Final Prediction
Chief Justice Roberts asked why the dictrict judge couldn't just schedule the case so as to make the collective certification determination prior to the mootness determination. Problem solved, right? Call me crazy, but I think Chief Justice Roberts sides with the liberal bloc again, with a practical opinion directing district courts to use their vast scheduling powers to just schedule a mootness hearing after scheduling a hearing to determine certification of a collective action. I'm going with 5-4 employee-side (maybe CJ can drag Justice Kennedy or Justice Alito along with him).

Monday, December 3, 2012

Does somebody have a case of the Mondays? Well, I have the perfect cure: a Fired for What!? 2-for-1 double feature. Sidenote on "case of the Mondays" - Office Space was on television yesterday (you probably already guessed that it is a favorite of mine). Unfortunately, it was edited for television so I had to endure repeated references to "pound me into ash" prison dubbed over the original audio (you can't make this stuff up). Anyways, on with the Fired for What!?:

Fired for being gay - VCU women's volleyball coach, James Finley, claims he was fired for being gay. VCU denies the accusation. Federal law does not expressly prohibit sexual orientation discrimination, and a quick peak at Virginia's anti-discrimination law leads me to believe that the state law doesn't protect sexual orientation either (I don't practice in VA though - so if you know of a statute I'm missing, drop me a comment). Public universities do have additional considerations when terminating employees, however, such as due process claims, First Amendment right to speak on matters of public concern, and possibly even a crafty equal protection argument.

Fired for not getting a flu shot - Trihealth fired 150 employees for failing to obtain a required flu shot. The company did indicate that terminated employees could appeal the decision, but only after receiving the flu shot. This is probably lawful, but could potentially raise some accommodation issues if employees refused for religious and/or health (disability) reasons.

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Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.